Citation Nr: 21042502 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-00 113 DATE: July 13, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left thumb fracture is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to May 1976. This case was previously before the Board in February 2019, at which time it was remanded for further development. 1. Entitlement to a rating in excess of 10 percent for left thumb fracture is remanded. The Board remand instructed the AOJ to obtain an examination for the Veteran's left thumb. The examiner was instructed to provide an estimate of range of motion during flare-ups or indicate that such opinion could not be provided and provide a rationale explaining why that was the case. The October 2020 examination report indicates only that the examination was not conducted during a flare-up and that the examination was neither medically consistent or inconsistent with the Veteran's statements regarding functional loss during flare-ups. No estimated range of motion during flare-ups was provided, nor was any explanation given regarding the lack of such estimates. This does not constitute substantial compliance with the Board's prior remand instructions. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a back disability is remanded. The Board's prior remand instructed the AOJ to obtain a new back examination and a medical opinion regarding the etiology of any back disability. The examiner was instructed to review and discuss the January 1976 and July 1980 STRs. Neither the October 2020 back examination nor the addendum opinion address the requested STRs. The examiner indicated in the addendum opinion that the STRs had been reviewed but did not discuss the January 1976 or July 1980 STRs as instructed by the Board. This does not constitute substantial compliance with the Board's prior remand instructions. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for sinusitis is remanded. The October 2020 examination for sinusitis indicated that the Veteran does not have a diagnosis of sinusitis or any other sinus disability and therefore did not provide an opinion regarding etiology. However, VA treatment records show that the Veteran has been diagnosed with sinusitis. The VA examiner did not address this evidence. Therefore, remand is required for clarification regarding whether the Veteran now has or has had during the pendency of the claim any sinus disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his left thumb disability. The joints involved should be tested for pain (1) in active motion, (2) in passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must specifically indicate whether or not the left thumb is ankylosed, considering the contradictory statements in the October 2015 VA examination report (noting less movement than normal due to ankylosis, adhesions, etc., while also noting no ankylosis in the left thumb). In assessing functional loss, please also provide an opinion describing functional impairment of the Veteran's left thumb due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 2. Obtain an addendum opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability, to include lumbar strain, had its onset during service or is otherwise related to service, to include as a result of the fall injuring his left thumb and documented lumbar sprain therein. In addressing this question, please review and discuss the January 1976 and July 1980 STRs. A complete robust rationale should be given for all opinions and conclusions expressed. 3. Obtain an addendum opinion regarding whether the Veteran has a current sinus disability. If no sinus disability is diagnosed, the examiner should address the VA treatment records indicating such a diagnosis. For any current sinus disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset during service or is otherwise related to service, to include as a result of conceded exposure to jet fuel and reported exposure to oil-based malathion, sevin, xylene and formaldehyde therein. In addressing this question, please discuss the STRs showing a history of symptoms to include headaches, earaches, sore throat, congestion and sinus problems and a diagnosis of seasonal allergies. See, e.g., January 1973, July 1973, May 1980, April 1981, September 1981, and May 1984 STRs. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.